Deceptive Claims On Products In This COVID Pandemic

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Over the past year there have been a few products out there making spurious claims about products which have to be called out. These claims have been made by unscrupulous producers looking to capitalize on the misery of the  COVID-19 pandemic. Before we start it is useful to just say a few words about the Federal Trade Commission in the USA which has the same type of function as the Advertising Standards Authority in the United Kingdom.

In the USA, the Federal Trade Commission (FTC) exercises its jurisdiction over the advertising of non-prescription foods, drugs, dietary supplements, cosmetics and services. This role is enshrined in the FTC Act which has a few key sections.

The FTC has statutory authority over a number of aspects enshrined in that FTC Act. To be utterly specific, for example, Section 5A of the act ‘prohibits unfair and deceptive claims in the advertising and labeling of dietary supplements’. In Section 12, it prohibits the false advertisement of foods, drugs, devices, cosmetics and services’. All these claims relate to those that are made in commerce.

The prohibitions mean no false or unsubstantiated claims and in a particular circumstances, any omissions of material fact which could include the presence or sale of hazardous products. A claim cannot be made for saying a product is safe for example when it is demonstrated not to be i.e. shows particular contra-indications to a consumer.

We noticed that since March 2020 when COVID-19 began in full earnest, the FTC sent almost 400 warning letters to various businesses that were effectively breaking the law. There were also nearly 130 joint warning letters with the FDA too.  All these are posted on the websites of the FTC and the FDA (Food & Drug Administration).

Those who received these letters were businesses manufacturing dietary supplements, foods, clinics that were medical or wellness, doctors, naturopaths, homeopaths, chiropracters and a few others aiming to cash in of people’s concerns about the need to make themselves feel safe during the pandemic.

The types of products which I think we have noticed in various citings cover a surprisingly large range of products. They included claims for vitamins especially vitamin C and D, minerals like zinc and calcium, a large range of homeopathic remedies and medicines, ozone treatments, stem cell technology, human embryo treatments, Chinese medicines, CBD (of course), herbal and even non-herbal teas, immunity boosting ingredients, the infamous Myer’s Cocktail was one as was colloidal silver. In fact if you scour the web-sites around the world the claims for these and other products in countering COVID-19 seem to have increased but not so much in the USA. 

The good news from the FTC news sources is that they had over 95% compliance in withdrawing those claims in the USA. If the warnings are ignored then the FTC has the power to enforce actions such as shutting a production operation down, impounding stock and taking this off the shelves.

In December of 2020 the situation was considered so serious that even with a Presidential election, Congress passed a bill called the COVID Consumer Protection Act. This was a tool to penalise marketing people who made false and deceptive claims on the treatment, cure, prevention or mitigation of COVID-19 during the public health emergency. 

Miscreants were fined up to $43,792 per violation which is a substantial penalty. It is also a civil penalty incidentally.  This came under the Consumer Protection Act, H.R. 133, 116th Congress, Div. FF, Title XIV (2020). Might be a difficult read but it’s worth taking the time to understand the provisions in that Act. based on this act, every post on the web-site that made a spurious claim was treated as a separate violation.  It was also the case that it was a separate violation for each day that post was visible on the web-site. Clearly multiple posts on the same web-site could make infringement a business-closing event. 

The first case we saw was reported in the Los Angeles Times on the 30th April 2020. This was Marc Ching who is an animal rights supporter and founded the Animal Hope & Wellness Foundation. He was selling a herbal supplement called Thrive™ that he claimed could treat, prevent and reduce the risk of COVID-19. This product contains a number of ingredients including echinacea, vitamin C, cranberry juice extracts and so on with claims. Unfortunately there are at best associations for some of these herbs in helping alleviate symptoms for a range of conditions and diseases but certainly not treating COVID-19 and certainly not in any defined medical sense. 

The offending business didn’t stop there though because the FTC also found he was making unsubstantiated claims for other products which were sold by his supplements company called Whole Leaf Organics on being able to treat cancer.  In this case such products contained cannabidiol or CBD which have so far been unproven in curing any disease although associations are being made, but certainly not preventing or curing a disease. The FTC filed a lawsuit against the business to stop immediately which was complied with.

Another high profile case included deceptive advertising by a business called Golden Sunrise Nutraceutical, Inc. which was marketing an ‘Emergency D-Virus’ treatment. This was claimed to use vitamin D as a scientifically proven treatment for COVID-19. They also stated their treatment was ‘FDA accepted’.  

The company has a long history of making spurious claims for their products in treating a range of conditions. These have included preventing cancer or curing it. A similar case was made against them for treating other conditions such as Parkinson’s disease.

Since then there have been a few other products such as Gan Mao Ling from Dr. Shen’s which was a herbal cold remedy that also claimed to treat COVID-19. The tablets were prepared in the USA (so not imported) in C GMP approved facilities. The colloidal silver product was ASAP HCP HealthMax 10 which was a silver supplement that was not capable of serving as an ‘immune system support’ as it claimed.

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